When it comes to the disclosure of material information, stakeholders in the property sector have faced a particular challenge for almost 15 years.
Some readers may remember the Property Misdescriptions Act 1991 and the offence of providing false or misleading information on 33 specified matters. But it was only an offence if agents disclosed information that was false or misleading.
Some agents, therefore, felt it was safer not to disclose any information at all rather than run the risk of stating something that might be inaccurate.
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) provided greater security for consumers – including renters and homebuyers – and the 1991 Act was repealed in October 2013.
However, although the CPRs introduced the concept of material information, they do not include a prescribed list of what is deemed to be such information.
The legislation simply states that material information is that which the average consumer needs in order to make an informed decision about a transaction.
National Trading Standards (NTS) recognises that the absence of an explicit list of material information makes compliance a challenging issue, and is working with industry to develop guidance that defines this.
'Although the CPRs introduced the concept of material information, they do not include a prescribed list of what is deemed to be such information'
Property stakeholders commonly ask the NTS Estate and Letting Agency Team (NTSELAT): 'What is material information, and what information must I put in my advertisements to stop me falling foul of the law?'
These are difficult questions to answer, as what constitutes material information for a particular property or consumer may not necessarily be important or relevant to another.
To clarify this situation, NTSELAT is working closely with representatives of the sector to identify and prioritise the key pieces of information that consumers need to know when searching for a property.
Alongside RICS, NTSELAT is working with a range of industry partners to help define this, including the property portals – Rightmove, Zoopla, OnTheMarket and PropertyPal – which are often the first port of call for people looking to buy or rent a home.
As a group, we agreed a basic list of material information that was then split into three parts.
Part A covers inescapable costs. These include essential financial commitments such as the price or rent and council tax, or rates in Northern Ireland. Tenure is also included because leasehold entails fundamental considerations such as ground rent, service charges and the amount of time remaining on the lease.
Part B includes information that must be established for all properties, such as details of its construction, utilities and parking. It covers non-standard features that would affect a consumer's decision about a property.
Part C relates to factors that may or may not need to be established, depending on whether they affect the property. This might include considerations such as flood risk and whether the building is listed, or in a conversation area.
New listings that don't include the material information listed in part A are now being flagged to users who visit the websites of the participating portals. NTSELAT is still finalising the guidance on parts B and C, but expects to publish more information on this soon.
Splitting the list into these three sections is important, as material information can be unique to each property. The proposed list provides an important guide for agents; but disclosure of key information should not be limited to what is already listed.
If agents think that a particular detail will affect a decision to buy or rent, they should inform the prospective customer at the earliest opportunity, including at the point of marketing.
NTS recognises that changing the material information provided in property listings will affect the way agents market properties, requiring changes to websites and brochures as well as data collection systems. But on a broader level, it also demands a change of mindset and culture by the sector and consumers.
For example, conveyancers are usually involved at the later stages of homebuying. However, the changes will likely mean that they will need to engage with estate agents much earlier in the process to provide the information required at the point of listing.
By introducing the changes in phases – starting with part A, followed by B and C – the transition will be more gradual, enabling the sector to adjust. Software is being updated to ensure that the relevant information can be readily included in a listing before it is published.
There will also be changes for the consumer, whether they are viewing a listing or looking to sell or let a property. NTS is working to raise public awareness about the changes consumers should expect to see on listings, empowering them to ask about any missing information, as well as explaining why sellers and landlords need to provide that information to their agent for a property to be advertised.
A key objective for this programme is to help agents fulfil their legal requirements. The CPRs are not new – and failure to comply with them could result in civil or criminal sanctions being imposed.
Today, failure to include material information within a property listing could result in an investigation by the local trading standards team or a complaint to the redress scheme. In future, by making it easier to provide material information on property portals, that risk will be significantly diminished.
Buying or renting a home is one of the most important transactions a person can undertake. The implications for finance and well-being can be enormous, with moving home among the top causes of stress in the UK.
Failed sales and lettings are expensive, and often a result of information being found out later in the process than it should have been. In many cases, had the consumer known about material information earlier in the process then the time, effort, expense and stress involved could have been avoided.
'Failure to include material information within a property listing could result in an investigation by the local trading standards team or a complaint to the redress scheme'